For ten years the Government of Antigua & Barbuda has avoided the payment of compensation for its expropriation of the private property known as Half Moon Bay Resort.
Physical possession of the property followed in 2007. To-date no compensation has been made for the taking.
This letter was written by the Managing Director of HMB Holdings Limited following the dismissal by the Eastern Caribbean Supreme Court of Appeal of an application by the Government of Antigua and Barbuda to allow a stay and a reversal of a High Court Order which required the Government to initiate payment of compensation to the dispossessed owners of the property whose title had been taken a decade ago.
The letter was originally sent to the media in Antigua, but was withheld from publication.
"Dear Editor,
In his morning interview on Observer Radio on Tuesday, July 21st 2015, Prime Minister Gaston Browne brought up the issue of payment due for the Government's forced acquisition of the Half Moon Bay property.
He included his remarks in a segment dealing with the status of the ABI bank, stating that his government needs to prioritize spending on matters of national importance. He went on to say that he hoped that in the future, judges would take such issues into consideration -- a pregnant suggestion, given the sudden change of assignment for Justice Cottle, whose Order was upheld last week by a unanimous decision of the Supreme Court of Appeal..
As much as we can all agree that budgeting -- whether around the kitchen table or in Cabinet meetings-- is a matter of setting priorities, it is also a matter of distinguishing between needs and wants. For a Government, the difference lies between statutory obligations and discretionary spending.
In the case of Half Moon Bay, the act of expropriation was discretionary. The purpose was to force the transfer of ownership of the property from the existing owners to R. Allen Stanford who actually recommended the application of eminent domain to this purpose. (See WSJ front page story of March 5, 2002.) Because the Government needed to legitimize this action, it justified the expropriation by grafting it onto the Land Acquisition Act, which gave it legal cover and ultimately the approval of the Privy Council.
At that very point, by gaining legal standing for its action, the Government lost all discretionary power. Under both the Land Acquisition Act and -- more importantly -- the Constitution of Antigua and Barbuda, compensation must be paid fairly and within a reasonable time for private property acquired by the application of eminent domain. It is stated unambiguously in the Land Acquisition Act, that the Minister of Finance SHALL issue a warrant for such compensation to be paid from the Treasury. The payment of compensation in an amount established by the judicial process thus becomes the duty of the Minister of Finance from which he cannot deviate without legal consequences.
But deviate he did and continues to do. In their capacity as Minister of Finance, both Harold Lovell and Gaston Browne have used the time-tested tactic of "pretend and extend" to delay the performance of their statutory obligation.
The precedent of a case from Grenada, decided by the Privy Council in 2001, has allowed the Government to apply to the court for permission to pay this debt by installment payments. However, for the court to allow such extended payments, the Government must prove its financial inability to comply with the law, and the proposed schedule of payments should be reasonable in both amount and dates of payment indicated. To-date, Government's proposals have not met this requisite standard and therefore none have been accepted by our Company or approved by the High Court.
Furthermore, the Government is now in breach of an ever-growing number of Court Orders, from every level of the Judicial system governing the laws of Antigua and Barbuda.
Payment of compensation to HMB Holdings Limited has long ceased to be a discretionary matter. It is a constitutional obligation. It is also a statutory obligation and as such it carries consequences under the laws of Antigua, the very same laws that elected and appointed Government officials have sworn to uphold in the performance of their duties.
H.M.B. Holdings Limited will now act to enforce these laws and is in the process of filing an application for a penal notice to be attached to the latest Order against the Minister of Finance. The matter will be heard after the High Court's summer vacation.
It is important to note that the Court Ordered the Government to pay only a portion of the total amount due -- a payment of 10 million US dollars on or before 1st June 2015, which the Government itself proposed to make back in December 2014 and again in April 2015. [The total amount due is US $40.8 million and accrues daily interest of US$2,917.00]
This was to be the first payment of a schedule that was not accepted, but which the Judge said would be considered, after the initial payment was delivered as indicated.
If this was a test of intention, performance or credibility given by the Judge -- the Government scored a failing grade.
Natalia M Querard, Managing Director
H.M.B. Holdings Limited"
It is to be noted that the current Minister of Finance is also the Prime Minister of Antigua & Barbuda. This could become interesting.
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